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NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Campbell & anor v Bowen & anor [2012] NSWLEC 1197
Hearing dates:
10 July 2012
Decision date:
10 July 2012
Jurisdiction:
Class 2
Before:
Galwey AC
Decision:

The application is dismissed.

Catchwords:
TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction not severe; application dismissed.
Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Amendment Bill 2010
Cases Cited:
Hinde v Anderson and anor [2009] NSWLEC 1148
Tenacity Consulting v Waringah [2004] NSWLEC 140
Torday & Anor v Eather [2012] NSWLEC 1014
Wisdom v Payn [2011] NSWLEC 1012
Category:
Principal judgment
Parties:
William Campbell and Dawn Campbell (Applicants)

Anthony Bowen and Kathleen Bowen (Respondents)
Representation:
Mr Mark Cottom, Kells The Lawyers (Applicants)

Mr Michael McMahon, M E McMahon & Associates (Respondents)
File Number(s):
20309 of 2012

Judgment

1COMMISSIONER: This application is made under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act"). Mr and Mrs Campbell have applied to the Court seeking orders for removal of the northern hedge in the rear garden of the neighbouring property and for pruning of the hedge along the southern boundary in the rear garden of that property. They say that the view they have enjoyed for many years is now severely obstructed by those hedges. The respondents wish to retain all the trees, saying they enjoy the privacy, shelter and amenity offered by the trees and that the trees provide environmental values.

On-site view

2At the on-site view we were taken to the five viewpoints on the applicants' property: two in the dining room, two in the lounge room and one in the home office. I observed here that the southern hedge has been recently pruned and does not obstruct any view. The Photinia in the northern hedge have also been pruned and do not obstruct a view. Other trees in the northern hedge partly obstruct a view, however I note that two of these trees are umbrella trees that are not part of the application, and another is a Solanum that is likely to be self-sown rather than planted. We then viewed the hedges from within the respondents' property. The Photinia, which make up the entire southern hedge and a major part of the northern hedge, have all been pruned to below 2.5 m height.

Jurisdictional tests

3As pointed out by both Mr Cottom and Mr McMahon the Act's jurisdictional tests are crucial to this matter.

Southern hedge

4Mr Cottom submits that, on the reading of sections 14A, 14B and 14D of the Act, it is the height of the trees at the time of the application being made that is relevant. However my own reading of s 14A(1)(b) is that it clearly states that Part 2A of the Act "applies only to groups of two or more trees that rise to a height of at least 2.5 m (above existing ground level)." The court has consistently applied that the trees must rise to this height on the day of the inspection and hearing. For instance, in Wisdom v Payn [2011] NSWLEC 1012, Moore SC and Hewett AC at [54], rejected the interpretation of this section as applying to any future time, describing it as "...a present height test that has to be satisfied at the time of the hearing." It follows that such an interpretation also precludes the height test applying to an earlier time, such as at the time of application.

5Therefore Part 2A of the Act does not apply to the southern hedge, which does not reach 2.5 m height, and this element of the application is dismissed.

Northern hedge

6Mr McMahon questioned whether Part 2A applies to the northern hedge in its entirety, as most of the plants are now less than 2.5 m in height. I accept Mr Cottom's submissions that, although some plants are less than 2.5 m tall, they form a hedge in which two or more trees are taller than 2.5 m and therefore the Court can make orders over the entire hedge. A similar finding was discussed by Fakes C in Torday & Anor v Eather [2012] NSWLEC 1014 at [16]. Therefore the jurisdictional tests at s 14A(1) are met and we move on to the assessment of the view loss.

Is there a severe obstruction of a view?

7Mr Cottom submits that the three-step process of view loss assessment outlined in Tenacity Consulting v Waringah [2004] NSWLEC 140 is relevant here. I accept his submissions, regarding the first step of this process, that the view is of high value, including as it does the beach, the headland, water and the interface between water and land.

8Regarding the second step of Tenacity, the view loss is over the side boundary, which is more difficult to maintain than views across the front or rear boundaries. Mr Cottom submits that, despite this, the view across this side boundary was a longstanding one prior to the trees being planted by the respondents.

9Coming to Tenacity's third step at [28], the severity of the view loss must be determined "... for the whole of the property, not just for the view that is affected." Mr Cottom submits that the view obstruction is severe. Mr McMahon refers to Wisdom where, at [58], the Senior Commissioner and Acting Commissioner quoted a section of the second reading speech on the introduction into the Legislative Assembly of the Trees (Disputes Between Neighbours) Amendment Bill 2010. Mr McMahon points out that Part 2A of the Act is intended to "be limited to the most serious cases." He says therefore that the bar is set high and that the obstruction caused by the northern hedge is not severe.

10My observation of the views from the viewpoints in the applicants' property indicated that the three trees that most contribute to a view loss are the two umbrella trees, which are not part of the application, and the Solanum, which is most likely a self-sown tree, not planted, and is therefore outside the Court's jurisdiction. Ignoring the view loss caused by these three trees, the loss from the remaining trees along the northern boundary cannot, on my assessment, be regarded as severe. Trees within the northern hedge obstruct only a small part of the view across the side boundary. Of the degrees of obstruction offered in Tenacity, 'minor' loss of view would best describe the situation here. The view of water and beach across the rear boundary is uninterrupted. As I am not satisfied that there is a severe obstruction of a view, according to s 14E(2)(a)(ii) I must not make any orders. The application regarding the northern hedge is also dismissed.

Conclusions

11Therefore the application is dismissed in its entirety. However I note that trees grow over time and there is the potential for a view to be obstructed in future. As has been discussed in Hinde v Anderson and anor [2009] NSWLEC 1148, the applicant may bring a new application to the Court in future if there are any changes in the circumstances regarding the trees.

12The orders of the Court are:

(1)The application is dismissed.

D Galwey

Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 25 July 2012